Harris v. Clarke

United States District Court, E.D. Virginia

March 18, 2015

Shawn J. Harris,v.Harold W. Clarke, Respondent.

MEMORANDUM OPINION

LIAM O'GRADY, District Judge.

Shawn J. Harris, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the validity of his conviction in the Circuit Court for the City of Hampton, Virginia of one count of breaking and entering, three counts of abduction, three counts of use of a firearm in the commission of abduction, and one count of use of a firearm in the commission of a breaking and entering. Respondent has filed a Motion to Dismiss and Rule 5 Answer, with a supporting brief and numerous exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison. 528 F.2d 309(4th Cir. 1975), and he has filed a reply. For the reasons that follow, petitioner's claims must be dismissed.

I. Background

On January 27, 2010, petitioner was convicted following a bench trial in the Circuit Court for the City of Hampton. Commonwealth v. Harris. Case Nos. CR09000823-01-CR09000823-08. On April 2, 2010, he was sentenced to forty-three years' imprisonment, with twenty years suspended. Petitioner pursued a direct appeal to the Court of Appeals of Virginia alleging that the evidence was insufficient to support each of his convictions. The Court of Appeals denied the petition for appeal on October 27, 2010, and a three-judge panel denied the petition for rehearing on February 3, 2011. Harris v. Commonwealth. R. No. 0705-10-1 (Va. Ct. App. 2011).[1] On August 5, 2011, the Supreme Court of Virginia refused the petition for appeal. Harris v. Commonwealth. R. No. 110409 (Va. 2011).

On August 15, 2012, petitioner filed a petition for writ of habeas corpus in the Circuit Court for the City of Hampton, claiming that (1) the evidence was insufficient to support his conviction for use of a firearm during the commission of a breaking and entering; (2) the evidence was insufficient to support his conviction for abduction of Miranda Hicks; (3) the evidence was insufficient to support his conviction for use of a firearm in the abduction of Miranda Hicks; (4) the evidence was insufficient to support his conviction for abduction of James Saunders-Carlisle; (5) the evidence was insufficient to support his conviction for use of a firearm in the abduction of James Saunders-Carlisle; (6) the evidence was insufficient to support his conviction for abduction of Shemecca Perry; and (7) the evidence was insufficient to support his conviction for use of a firearm in the abduction of Shemecca Perry. Harris v. Clarke. Case No. CL12002023-00. The court denied the petition on December 21, 2012. Petitioner appealed to the Supreme Court of Virginia, which refused the appeal on October 30, 2013, on the basis that petitioner had not complied with Rule 5:17(c)(1)(i) of the Rules of the Supreme Court of Virginia.[2] Harris v. Clarke. R. No. 130642 (Va. 2013).

On January 14, 2014, petitioner filed the instant federal habeas petition, [3] alleging that (1) the evidence was insufficient to sustain his conviction for use of a firearm in the commission of a breaking and entering; (2) the evidence was insufficient to sustain his conviction for abduction of Miranda Hicks; (3) the evidence was insufficient to sustain his conviction for the use of a firearm in the abduction of Miranda Hicks; (4) the evidence was insufficient to sustain his conviction for abduction of James Saunders-Carlisle;(5) the evidence was insufficient to sustain his conviction for use of a firearm in the abduction of James Saunders-Carlisle; (6) the evidence was insufficient to sustain his conviction for abduction of Shemecca Perry; and (7) the evidence was insufficient to sustain his conviction for use of a firearm in the abduction of Shemecca Perry.

On June 10, 2014, respondent filed a Motion to Dismiss petitioner's claims. Petitioner filed a response on July 24, 2014. Based on the pleadings and record before this Court, it appears that petitioner has exhausted all of his claims as required under 28 U.S.C. § 2254. However, this petition must be dismissed, as barred by the applicable statute of limitations.

II. Timeliness

A § 2254 petition for a writ of habeas corpus must be dismissed if filed more than one year after (1) the judgment of conviction becomes final; (2) the removal of any state-created impediment to the filing of the petition; (3) recognition by the United States Supreme Court of the constitutional right asserted; or (4) the factual predicate of the claim could have been discovered with due diligence. 28 U.S.C. § 2244(d)(1)(A)-(D).

Based on the records of the state proceedings, petitioner's conviction became final on November 3, 2011, the last day on which he could have petitioned the United States Supreme Court for a writ of certiorari.[4] In calculating the one-year statute of limitations period, however, a federal court must toll any time during which "a properly filed application for State post conviction or other collateral review... is pending." 28 U.S.C. § 2244(d)(2). Whether a state post-conviction proceeding is "properly filed" is determined by applicable state law, as interpreted by state courts. See Pace v. DiGuglielmo. 544 U.S. 408, 413 (2005); Artuz v. Bennett. 531 U.S. 4, 8 (2000).

Petitioner filed his petition for a writ of habeas corpus in the Circuit Court for the City of Hampton on August 15, 2012. At that time, 286 days of the one-year limitations period had run. The court denied his petition on December 21, 2012. Accordingly, the period between August 15, 2012 and December 21, 2012 tolled the running of the statute of limitations. Between December 21, 2012, and January 14, 2014, when petitioner filed this federal petition for a writ of habeas corpus, an additional 388 days passed. Added together, 674 days passed between the date petitioner's conviction became final and the date on which he filed his federal petition. Accordingly, petitioner filed his petition 309 days beyond the one-year statute of limitations.

The period between December 21, 2013, and October 30, 2013, when petitioner's appeal of his state habeas petition was pending, did not toll the running of the statute of limitations, as petitioner's appeal to the Supreme Court of Virginia was not"properly filed" within the meaning of § 2244(d)(2). In order for a petition for appeal to be properly filed, Rule 5:17(c)(1) of the Rules of the Supreme Court of Virginia requires an appellant to clearly describe the specific assignments of error in the lower court judgment. These assignments of error must be preserved "clearly and concisely, and without extraneous argument." The petition must also include reference to the specific page number in the lower court's record. Va. S.Ct. R. 5:17(c)(1). A review of petitioner's appeal from the circuit court's denial of his state habeas petition reveals that petitioner provided the same arguments as he provided in his original petition for appeal, and did not rely on specific page numbers in the circuit court's record. See Respondent's Brief in Support of Motion to Dismiss ("Resp.'s Brief) [Dkt. 12], Ex. 8. Accordingly, the Supreme Court of Virginia refused petitioner's appeal as not properly filed within the meaning of Rule 5:17(c)(1)(i).

Because petitioner's appeal to the Supreme Court of Virginia was not properly filed, this appeal did not toll the running of the statute of limitations. See Christian v. Bakerville. 232 F.Supp.2d 605, 607 (E.D. Va. 2001) (Cacheris, J.), cert, of appealability denied. 47 F.App'x 200 (4th Cir. 2001); see also Escalante v. Watson. 488 F.Appx. 694, 697-98 (4th Cir. 2012) (quoting Christian) (explicitly agreeing with the logic of Christian and finding that failure to comply with Rule 5:17(c) did not toll the statute of limitations). Accordingly, the period between December 21, 2012 and October 30, 2013, was not tolled, and the petition was not timely filed in this Court.

Petitioner contends that Christian is in apposite to the facts of his case, as he contends that the Supreme Court of Virginia, in its order permitting him to file an appeal from the circuit court's denial of his habeas petition, deemed his appeal to be timely filed. See Petitioner's Traverse to Motion to Dismiss ("Pet's Traverse") [Dkt. 19], at 38. From the attached exhibits, it appears that petitioner filed his petition for appeal, accompanied by a certificate of service, on April 18, 2013. On June 20, 2013, the Supreme Court of Virginia granted the petition for appeal, stating, "[t]o the extent that the certificate of service requests an extension of time to file a petition for appeal, the Court grants the request and the petition is considered timely filed." Id . Ex. A. Thus, petitioner ...

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